154
ORINDIRECTLY BY THE PERFORMANCE OR NONPERFORMANCEOF
OBLIGATIONS PURSUANT TO THIS AGREEMENT OR BY THE
NEGLIGENCE, ACTIVE OR PASSIVE, OF WSI AND/OR SIRIUS SHALL
BE EXCLUSIVELY LIMITED TO GENERAL MONEY DAMAGES IN AN
AMOUNT NOT TO EXCEED THE PRICE PAID BY THE SUBSCRIBER TO
SIRIUS HEREUNDER FOR THE MOST RECENT SIX MONTHS OF
SERVICE. IN NO EVENT SHAL WSI AND/OR SIRIUS BE LIABLE FOR
SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR
PUNITIVE DAMAGES OR LOST PROFITS OR DAMAGES FROM LOSS
OF USE OR DATA (DESPITE THE FACT THAT THE POSSIBILITY OF
SUCH DAMAGES ARE OR MAY BE KNOWN TO WSI AND/OR SIRIUS),
WHETHER ARISING OUT OF BREACH OF AGREEMENT, TORT OR ANY
OTHER CAUSE OF ACTION RELATING TO THE PERFORMANCE OR
NON-PERFORMANCE OF THIS AGREEMENT. THIS ALLOCATION OF
RISK AND THE DISCLAIMER OF WARRANIES IN THIS AGREEMENT
ARE REFLECTED IN SIRIUS SERVICE PRICES AND ARE A
FUNDEMENTAL ELEMENT OF SIRIUS AGREEMENT TO PROVIDE THE
SERVICE TO SUBSCRIBER. SUBSCRIBER MAY HAVE GREATER RIGHT
THAN DESCRIBED UNDER HIS OR HER STATE’S LAW.
B. EXCEPT FOR WILLFUL MISCONDUCT ON THE PART OF WSI AND/
OR SIRIUS, SUBSCRIBER SHALL DEFEND, INDEMNIFY AND HOLD
HARMLESS WSI AND SIRIUS FROM AND AGAINST ANY AND ALL
LOSSES, CLAIMS, DEMANDS, EXPENSES (INCLUDING REASONABLE
ATTORNEY’S FEES AND EXPENSES) OR LIABILITIES OF WHATEVER
NATURE OR KIND ASSERTED BY, SUFFERED OR INCURRED BY THIRD
PARTIES ARISING OUT OF THE USE OF THE SERVICE.
C. NEITHER WSI NOR SIRIUS MAKES ANY WARRANTY WITH RESPECT
TO THE SERVICE AND, THE SERVICE IS PROVIDED ON AN ‘AS IS’ AND
AN ‘AS AVAILABLE’ BASIS. NEITHER WSI NOR SIRIUS MAKES ANY
EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY
KIND, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF FITNESS
FOR A PARTICULAR PURPOSE, INTENDED USE OR
MERCHANTABILITY (WHICH ARE ALL HEREBY DISCLAIMED). NEITHER
WSI NOR SIRIUS ASSUMES ANY RESPONSIBILITY WITH RESPECT TO
THE USE OF THE SERVICE BY A PARTY.
DISCLAIMERS.fm Page 154 Wednesday, February 18, 2009 11:04 AM
